In a per curiam decision issued Aug. 6 in Sullo & Bobbitt, Barry Bobbitt v. Stewart Milner, the Fifth Circuit upheld rulings made by a U.S. district judge for the Northern District of Texas who had dismissed the claims Bobbitt and his former law firm had filed against several municipal officials that challenged their record-keeping procedures.

“We hold that the district court correctly dismissed appellants’ First Amendment claims because they failed to establish a constitutional right to access court records within one business day of their filing,” the Fifth Circuit wrote in the opinion.

Specifically, the Fifth Circuit found that the trial court’s decision met the “experience test” set up under U.S. Supreme Court holdings, which require plaintiffs seeking access to court documents to make an allegation that courts “throughout the United States” historically have released the information requested. The trial court was correct in concluding that the plaintiffs did not have a right to the information so quickly, the Fifth Circuit concluded.

“While they may be correct that the Supreme Court has not described at length what is required for a practice to be adopted nationwide, appellants’ failure to even allege that other municipalities provide access to these documents within one business day of their filing simplifies our inquiry,” the Fifth Circuit wrote. “After correctly applying the experience test to Sullo & Bobbitt’s claims, the district court did not err in holding that the right to immediate access to these types of court records is not established throughout the United States.”

Bobbitt said he’s disappointed in the Fifth Circuit’s ruling.

“They used a lot of circular and obscure case law to hold court documents are not truly open,” Bobbitt said. “They are only open to the extent that local government wants to disclose information. I just don’t understand how that can be constitutional under any standard.”

The decision did not come as a surprise to Robert Fugate, an Arlington assistant city attorney who is defending his city’s chief municipal judge, Stewart Milner, in the case.

“It’s what we expected,” Fugate said of the decision. “There were no examples of immediate availability, and, as the court noted, we made this information available to anyone who wanted it.”